Opinion
H042833
03-06-2017
THE PEOPLE, Plaintiff and Respondent, v. NATHAN THOMAS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F25128)
Defendant Nathan Thomas was convicted after a court trial of first degree burglary (Pen. Code, § 459). He was placed on probation for a period of three years with imposition of sentence suspended. On appeal, he argues insufficient evidence supports his conviction of first degree burglary, because the garage he entered was detached from the residence and was therefore not a part of the inhabited dwelling. He also claims the condition of his probation requiring him to stay away from the victim and the home he had burglarized is unconstitutionally vague and overbroad, because it fails to specify a specific distance, lacks a knowledge requirement, and infringes on his right to travel. We modify the probation condition to specify distance. As modified, we affirm the judgment.
Unspecified statutory references are to the Penal Code.
BACKGROUND
1. The Information
On August 14, 2013, defendant was charged by information with a count of first degree burglary (§ 459). It was also alleged that he was not eligible to be sentenced to a term of imprisonment in county jail on an executed sentence upon conviction of the aforementioned offense pursuant to section 1170, subdivisions (h)(3) and (f). On August 16, 2013, defendant pleaded not guilty.
On October 3, 2013, defendant waived his right to a jury trial with the understanding that if he was found guilty he would face a maximum sentence of probation with 365 days in county jail.
2. The Court Trial
Defendant's court trial began on October 25, 2013. The parties submitted the preliminary hearing transcript and police reports to the court for its consideration.
a. Alexander Barker's Testimony
The victim of the burglary, Alexander Barker, testified. Barker, an architect living in Santa Cruz, designed his house to have an open Spanish-style courtyard. All of the habitable rooms, including the living room, dining room, guest bedroom, master bathroom, and garage, opened up to the courtyard through a breezeway. Entry into the house was through a front gate, which was a mock gate at the time. The mock gate was situated directly between the garage and the main living quarters of the house. The gate had a slide lock, and the Barkers kept the door locked unless they were expecting company. No key was needed to open the slide lock. Barker explained the house was meant to be an "indoor/outdoor house." The courtyard was completely enclosed by the house on three sides and by a metal fence on one side. The Barkers used the courtyard as a living area.
The house had a second floor created over the breezeway, which had a living room that Barker's wife used as a studio. The second floor also had a deck that went over the trellis beams, which was directly attached to the garage.
The garage had doors that opened up to the breezeway. A translucent roll-down door opened up the rear of the garage to the courtyard. The garage was physically connected to the other parts of the house by beams connected to a continuous set of trellises that ran through the entirety of the house. The garage had four doors. The only garage door exposed to the street was a roll-up door controlled by a garage door opener. The other three doors could be accessed only by entering either the fence at the side of the house or the mock gate at the front of the house.
The garage was used to park a car. Barker and his wife also used the garage as a workshop and a wet room. Inside the garage was a sink and various tools. During weekdays, Barker went inside his garage at least twice a day. During weekends, Barker would open up the translucent door between the courtyard and the garage. He would work straight out of the garage, going in and out of the garage approximately 20 times a day.
The night of the burglary, Barker was in his living room when he saw the lights turn on in the garage. Barker assumed his sons had come over to borrow tools. He went to the garage and tried to open the door, but the door was locked. He knocked on the door and heard noises coming from the garage. Barker realized that someone was inside the garage. He went out through the gates and saw someone fleeing towards the ocean.
Barker did not personally see how defendant had gotten inside the garage. Since there was no damage to the garage's doors, Barker presumed he had inadvertently left the door to the garage from the breezeway unlocked. Access to this side door could only be obtained through the front gate or through one of the other entrances to the house. The side door was not directly accessible from the street.
b. Police Reports
Defendant told the arresting officer he entered the garage after noticing the "garage door was slightly opened." After he entered the garage, he locked the door behind him so nobody else could come inside. He admitted to drinking a bottle of water and taking some tools. Defendant said he may have dropped the bag of tools he was intending to steal inside the garage when he fled the scene.
c. The Court's Decision
Based on the evidence presented, the court determined the garage was functionally connected to the rest of Barker's home. Additionally, the garage was used by Barker and his family as a living space. Thus, the court found defendant guilty of first degree burglary.
3. Sentencing
On December 18, 2013, the court suspended imposition of sentence for three years and placed defendant on probation. As a condition of his probation, defendant was ordered to "stay away from the residence premises of 285 24th Avenue" and to "stay away from Alexander Barker." He was also ordered to serve 365 days in county jail.
DISCUSSION
Defendant raises two arguments on appeal. First, he claims insufficient evidence supports his conviction for first degree burglary, because the garage he entered was not attached to the Barker's residence. Second, he argues the "stay away" probation condition ordered by the court is unconstitutionally vague and overbroad.
1. Insufficiency of the Evidence
We first address defendant's arguments pertaining to the sufficiency of the evidence to support his conviction for first degree burglary. Defendant maintains the garage was detached and was not part of the inhabited dwelling house. Therefore, he insists the evidence is only sufficient to show he is guilty of second degree burglary. As we explain below, we reject defendant's claim of insufficient evidence.
To determine whether there is sufficient evidence to support a conviction, an appellate court "must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 578.) Reversal is not warranted "unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " (People v. Bolin (1998) 18 Cal.4th 297, 331.)
Section 460, subdivision (a) provides that "[e]very burglary of an inhabited dwelling house . . . is burglary of the first degree." Section 459 states that " 'inhabited' means currently being used for dwelling purposes, whether occupied or not." "The term 'inhabited dwelling house' for many years has been considered a broad, inclusive definition [citation], and has been analyzed in terms of whether the dwelling was being used as a residence." (People v. Cruz (1996) 13 Cal.4th 764, 776.)
" 'In determining whether a structure is part of a inhabited dwelling, the essential inquiry is whether the structure is "functionally interconnected with and immediately contiguous to other portions of the house." [Citation.]' [Citation.] ' "Functionally interconnected" means used in related or contemporary ways. "Contiguous" means adjacent, adjoining, nearby or close.' " (People v. Thorn (2009) 176 Cal.App.4th 255, 262 (Thorn).)
On numerous occasions, courts have determined that garages that are connected to or attached to a residence are part of an inhabited dwelling. In People v. Moreno (1984) 158 Cal.App.3d 109, the court held that a garage that was "under the same roof, functionally interconnected with, and immediately contiguous" to other portions of the house was part of the inhabited dwelling. (Id. at p. 112.) In People v. Cook (1982) 135 Cal.App.3d 785, the court held that when a "garage is an attached and integral part of the house, it is simply one room of several which together compose the dwelling." (Id. at p. 796.) Similarly, in People v. Ingram (1995) 40 Cal.App.4th 1397, disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 559, the court held that a garage that shared a common roof and was attached to the house was still "functionally interconnected with and immediately contiguous to other portions of the house," even though it could only be accessed from an external entrance. (People v. Ingram, supra, at p. 1404.)
Structures that are not immediately contiguous but are connected by a breezeway have also been found to be " 'functionally interconnected with' " and "an integral part" of the main inhabited dwelling house. (People v. Coutu (1985) 171 Cal.App.3d 192, 193 (Coutu).) In Coutu, the court held that a storeroom connected to the house by a breezeway was part of the main house; therefore, burglary of the storeroom constituted first degree burglary. (Id. at pp. 193-194.)
Defendant attempts to distinguish Coutu on several grounds. First, he opines the breezeway contemplated in Coutu shared a common roof with the rest of the house, whereas the breezeway here was covered by a trellis, not a roof. (Coutu, supra, 171 Cal.App.3d at p. 193.) Defendant further argues a trellis is decorative; thus, it cannot functionally interconnect the garage with the rest of the house. The existence of a common roof, however, was not the determinative fact in Coutu. Rather, the determinative fact was that the garage was immediately contiguous to the rest of the house. Likewise, here there is sufficient evidence the garage was physically and structurally connected to the rest of the house. Barker described the trellis as an integral part of the house that ran continuously throughout the structure. Additionally, the second floor deck was laid out on top of the trellis beams, and the deck was directly connected on both sides to the garage. In sum, there was sufficient evidence the garage was immediately contiguous to the rest of Barker's home.
Defendant also argues the breezeway's function as a path was insufficient to integrate the garage with the house's living quarters. And he again distinguishes Coutu, noting the breezeway contemplated by the court there shared the characteristics and functions of an interior space. The homeowners in Coutu kept a washing machine in the breezeway and stored food products and garden equipment in the storeroom. (Coutu, supra, 171 Cal.App.3d at p. 193.)
We are not persuaded. As previously discussed, the dispositive issue is whether the garage was " 'functionally interconnected with' " and an " 'integral part of' " the main house. (Coutu, supra, 171 Cal.App.3d at p. 193.) Here, there is sufficient evidence of both. The Barkers used the garage as a workshop for their hobbies, parked a car in the garage, and used the garage as a wet room. Thus, the garage was a part of the inhabited dwelling.
We also reject defendant's argument that there was insufficient evidence that his crime constituted first degree burglary, because the front gate was a temporary mock gate that did not need to be opened with a key.
When " 'the outer boundary of a building for purposes of burglary is not self-evident, . . . a reasonable belief test generally may be useful in defining the building's outer boundary. Under such a test, in dealing with items such as a window screen, a building's outer boundary includes any element that encloses an area into which a reasonable person would believe that a member of the general public could not pass without authorization. . . . The test reflects and furthers the occupant's possessory interest in the building and his or her personal interest in freedom from violence that might ensue from unauthorized intrusion.' " (Thorn, supra, 176 Cal.App.4th at p. 264; People v. Valencia (2002) 28 Cal.4th 1, 11, disapproved of on other grounds in People v. Yarbrough (2012) 54 Cal.4th 889, 892-894.) Application of the reasonable belief test to determine whether penetration of a particular part of a building constitutes "entry" for the purposes of the burglary statute is a question of law. (Thorn, supra, at p. 268.)
Applying the reasonable belief test, the temporary mock gate was part of the house's outer boundary. Although the mock gate could be unlocked without a key, the Barkers typically locked the door with the sliding lock mechanism. Photos of the mock gate show that it was located directly between the garage and the house's living quarters. Furthermore, Barker and his family considered the mock gate to be the main entrance into the house. A reasonable person would believe that a member of the public cannot pass through the entryway without prior authorization.
Lastly, defendant argues that even if the breezeway can be considered a part of the residence, it was not proven beyond a reasonable doubt that he entered through the temporary mock gate and not through the other side door leading from the yard to the garage. Essentially, defendant's claim is that if we find the garage was not a part of the inhabited dwelling house, there cannot be sufficient evidence of first degree burglary since it was unclear whether he entered the garage through the side yard (which he argues is not first degree burglary) or through the mock gate. However, based on our conclusion that the garage was a part of the inhabited dwelling, there is sufficient evidence that defendant's entry into the garage itself constituted first degree burglary.
Defendant claims he entered the garage through a slightly opened, unlocked side door. Defendant never specified which door he used to enter the garage.
2. Probation Conditions
Defendant argues the condition of his probation requiring him to stay away from Barker and the house he burglarized, identified as 285 24th Avenue, is unconstitutionally vague and overbroad, because it lacks a knowledge requirement, fails to specify the distance he must stay away, and infringes on his right to travel. Although defendant did not object to the condition below, his arguments are cognizable on appeal, because they raise a constitutional challenge involving a question of law that requires no reference to the sentencing record. (In re Sheena K. (2007) 40 Cal.4th 875, 887-889 (Sheena K.).) We review his arguments de novo. (In re Shaun R. (2010) 188 Cal.App.4th 1129, 1143.)
"A probation condition 'must be sufficiently precise for the probationer to know what is required of him, and for the court to determine whether the condition has been violated,' if it is to withstand a challenge on the ground of vagueness. [Citation.] A probation condition that imposes limitations on a person's constitutional rights must closely tailor those limitations to the purpose of the condition to avoid being invalidated as unconstitutionally overbroad." (Sheena K., supra, 40 Cal.4th at p. 890.) "[A]ppellate courts have found probation conditions to be unconstitutionally vague or overbroad when they do not require the probationer to have knowledge of the prohibited conduct or circumstances." (People v. Kim (2011) 193 Cal.App.4th 836, 843.)
Defendant argues the probation condition requiring him to stay away from Barker and 285 24th Avenue should be modified to include a knowledge requirement. In other words, he argues the condition must be modified to read that he must knowingly stay away from Barker and 285 24th Avenue.
The California Supreme Court recently considered the constitutionality of a probation condition that lacked a knowledge requirement. (People v. Hall (2015) 2 Cal.5th 494 (Hall).) In Hall, the challenged probation condition prohibited possession of narcotics and firearms. The California Supreme Court determined the addition of a scienter requirement was unnecessary, because the condition's scope was sufficiently clear. (Id. at pp. 500-501.) "California case law already articulates not only a general presumption that a violation of a probation condition must be willful, but also specifically provides that probation conditions barring possession of contraband should be construed to require knowledge of its presence and its restricted nature." (Id. at p. 501.) The court noted that when criminal statutes lack a scienter element, courts frequently construe the statute against the common law presumption that scienter is required and imply the necessary mental state. (Ibid.) Like criminal statutes, "probation conditions [are] generally presumed to require some form of willfulness, unless excluded ' " 'expressly or by necessary implication.' " ' " (Id. at p. 502.) No one contended the challenged condition expressly reflected an intent to eliminate a scienter requirement, or that it was implied that a scienter requirement was unnecessary to sustain a probation violation. (Ibid.) The court explained, "[s]o long as the requisite scienter is readily discernible, its omission from the text of the statute or probation condition poses little risk of 'trap[ping] the innocent.' " (Id. at p. 502.)
We also note the California Supreme Court granted review and deferred action in In re A.S. (2014) 227 Cal.App.4th 400, review granted Sept. 24, 2014, S220280 (necessity of knowledge requirement in no-contact probation condition) pending its disposition of the related issue in Hall.
Although Hall concerned a different probation condition, we find its analysis helpful. Like the condition contemplated in Hall, we find the requisite scienter for defendant's challenged stay-away condition is readily discernible, rendering modification of the condition unnecessary. The vagueness doctrine demands " ' "no more than a reasonable degree of certainty." ' " (Hall, supra, 2 Cal.5th at p. 503.)
In People v. Rodriguez (2013) 222 Cal.App.4th 578 (Rodriguez), disapproved of on another point in Hall, supra, 2 Cal.4th 494 at page 503, footnote 2, this court considered whether a similarly worded probation condition was unconstitutionally vague. In Rodriguez, the defendant was ordered to stay at least 100 yards away from the victim, the victim's residence or place of employment, and any vehicle the victim owned or operated. (Id. at p. 594.) We noted that probation violations must be willful to justify a revocation of probation and "[n]o reasonable law enforcement officer or judge can expect probationers to know where their victims are at all times. The challenged condition does not require defendant to stay away from all locations where the victim might conceivably be. It requires defendant to remove himself ('Stay away at least 100 yards . . . .') when he knows or learns of a victim's presence." (Ibid.) Nonetheless, we found the probation condition to have fatal ambiguities. The condition did not specify the victim (or victims), identify the victim's address, or the vehicles the victim owned or operated. (Id. at p. 595.) There was also nothing in the record indicating the defendant knew or should have known this information. Accordingly, we remanded the matter to the trial court so it could modify the condition to cure these ambiguities, which we noted could be accomplished by clarifying that defendant was not to "knowingly come within 100 yards of a known or identified victim." (Ibid.)
We also found that an express knowledge requirement was not necessary in a probation condition prohibiting a defendant from contacting a named victim within 100 yards in People v. Hartley (2016) 248 Cal.App.4th 620. The defendant in Hartley argued the probation condition prohibiting contact was vague absent an express knowledge requirement. We concluded that an objective reading of the probation condition left no doubt as to the scope of the prohibited conduct. (Id. at p. 633.) Therefore, we held that a modification was unnecessary, because the probation condition adequately described the proscribed conduct and provided the defendant with adequate fair warning of what was required of him. (Id. at p. 635.)
We agree with the rationale set forth in Rodriguez and Hartley. We remanded the matter for clarification in Rodriguez, but defendant's probation condition is not similarly ambiguous. Unlike the condition at issue in Rodriguez, the victim, Barker, and the address defendant must stay away from, 285 24th Avenue, have both been clearly identified. It is clear the order requires defendant to "remove himself . . . when he knows or learns of [Barker's] presence." (Rodriguez, supra, 222 Cal.App.4th at p. 594.) The addition of a knowledge requirement is therefore unnecessary.
Defendant also claims that requiring defendant to stay away from 285 24th Avenue, Barker's current home, is unduly vague, because Barker may move in the interim. This argument, however, does not implicate the condition's vagueness. The probation condition does not require defendant to stay away from Barker's current and future residences. Rather, the condition requires defendant to stay away from the residence he burglarized, which is clearly identified as 285 24th Avenue. There can be no argument that defendant is not fairly apprised of what conduct would violate this condition based on its wording. (Sheena K., supra, 40 Cal.4th at p. 890 [underpinning of vagueness challenge is due process concept of fair warning].)
We do, however, find merit in defendant's claim that the condition is vague, because it fails to specify how far defendant must stay away from Barker and 285 24th Avenue. As worded, it is unclear whether defendant would be in compliance with this condition if, for example, he is a block from 285 24th Avenue or if he is across the street from 285 24th Avenue. In his opening and reply briefs, defendant suggests the condition be modified to specify he must stay 50 yards away from Barker and 285 24th Avenue. Although the trial court would be in a better position to identify the appropriate distance in light of the fact-specific circumstances of this case, such as where defendant may live and work in relation to Barker and 285 24th Avenue, in the interest of judicial economy we will modify the condition as suggested by defendant. The trial court retains the ability under section 1203.3 to alter this condition of probation if necessary.
The People argue it is clear the trial court intended defendant to merely stay away from the house and did not intend for defendant to stay a certain distance away from the house. Although a trial court's comments may clarify conditions of probation, the trial court made no such comments here. At the sentencing hearing, the trial court simply ordered defendant to stay away from Barker and Barker's home.
Lastly, we reject defendant's claim that the condition is overbroad and infringes on his right to travel. As modified, the condition restricts defendant from being 50 yards away from Barker and 285 24th Avenue. "Although criminal offenders placed on probation retain their constitutional right to travel, reasonable and incidental restrictions on their movement are permissible." (People v. Moran (2016) 1 Cal.5th 398, 406.) The probation condition contemplated here does not substantially interfere with defendant's constitutional rights, because "[t]he intrusion on [his right to] travel is minimal . . . and the forbidden zone is specifically linked to his past crime." (People v. Petty (2013) 213 Cal.App.4th 1410, 1422.) It is therefore not unconstitutionally overbroad.
DISPOSITION
The stay-away probation condition is modified as follows: "Stay 50 yards away from 285 24th Avenue and Alexander Barker." As modified, the judgment is affirmed.
/s/_________
Premo, J.
WE CONCUR: /s/_________
Rushing, P.J. /s/_________
Grover, J.